Supreme Court ruling regarding Seattle, WA & Jefferson County, KY boards of education use of race in K-12 school assignments

[Washington, DC] -- On Thursday, June 28, 2007 the U.S. Supreme Court ruled that the school systems in Seattle, WA and in Louisville, KY had violated the equal protection clause of the 14th Amendment by their use of a student's race in deciding whom to admit to particular public schools.

          Ward Connerly, of the American Civil Rights Institute, declared the Supreme Court's decision to strike down the Seattle and Louisville school district racial preference scheme as a "glorious victory."

          In the cases Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools (PICS) v. Seattle School District a majority of justices voted to again limit the use of race preferences in American life, with 4 of the justices advocating for a total elimination of race as a factor in public institutions.  A fifth justice, Anthony Kennedy, joined the majority in its 5-4 determination that the school districts' use of race was unconstitutional, but in his concurring opinion Justice Kennedy placed limits on his enthusiasm for elimination the use of race in school assignments.

          Of today's ruling, Ward Connerly said:  "The Supreme Court today made a glorious decision that directly fits with our plans to eliminate race in all facets of American public life. This victory is a logical step in our preparation for Super Tuesday for Equal Rights," said Connerly.

          Connerly is leading a national effort called Super-Tuesday for Equal Rights, which seeks to educate the American people of the harms of race references. Targeted states for this effort are Arizona, Colorado, Missouri, Nebraska, and Oklahoma.

          "This Supreme Court decision shows that the era of race preferences is quickly coming to an end. The Court is finally starting to catch up with what the American people have known for years: Race has no place in American public life," said Connerly

          Jennifer Gratz, plaintiff in the Supreme Court case Gratz v. Bollinger, joined Connerly in his optimistic response to the Court's decision.

          "America is quickly moving beyond race preferences, set-asides, and quotas. Within my lifetime I believe we will see a sunset on the idea of race preferences. Our government institutions should judge people on character and merit, not skin color or sex," said Gratz.

Thumbnail Analysis of the Court's Ruling:  This decision could well endanger similar race-based plans in hundreds of K-12 school districts nationwide, and it places serious limits on how public school systems may attain quota-based racial diversity.  Indeed, today's Supreme Court decision can be interpreted as a nod toward the concept of "natural", or voluntary, diversity which would occur through residential housing choices, school choice, and other variables widely thought to not be the purview of a burdensome regulatory mandate that certain numbers of certain races must be forcibly represented through the K-12 school systems.

          The decision was split 5-4, Chief Justice John Roberts writing the majority opinion and the four liberal justices dissenting.

          The wild card on the conservative side was Justice Anthony Kennedy who stated in a concurring opinion that race may be one component of school district plans to achieve racial balance or diversity.  Kennedy said that he disagrees with any interpretation of Roberts' majority opinion which prohibits the use of race in any circumstance in K-12 school assignments.  Kennedy did agree with Roberts that the specific, contested Louisville and Seattle plans were in violation of constitutional equal protection guarantees.

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Last known original link to the opinion at the Supreme Court:
SCOTUS

Analysis of Today's Supreme Court Ruling
by Thomas E. Wood
Americans Against Discrimination and Preferences

[Thurs., June 28, 2007]  -- This is a very good opinion. 

          The decision itself is based decisively on the assertion that [the landmark Brown v. Board of Education ruling in 1954 which declared that the establishment of separate public schools for white students and black students was inherently unequal] stands for the principle that is individuals, not groups [or races, or ethnicities], that are protected by the Fourteenth Amendment. It is surprising that this should even be an issue, since that is in fact its plain meaning. Still, it is heartening to see it stated so forcefully, as Roberts (who wrote the Court's opinion) does so well in his criticism of Breyer.

          Those who think that consideration of race as a factor has no place whatsoever in American life or law will find it [this Supreme Court Ruling] disappointing, for a couple of reasons.

          One of the main reasons the Court gave for striking down the busing plan is that it did not observe the constraints on racial classifications that Grutter had applied in admissions in higher education -- and [the 2003] Grutter [decision by the Supreme Court] did not rule out the use of race as a consideration in college admissions. Indeed, Grutter did not even rule out entirely the Michigan Law School's use of race as a criterion to decide which *individuals* to admit -- a procedure that intrinsically affects individuals, not groups. This is not to say that the [Chief Justice John] Roberts' Court will not choose to chip away at Grutter in the future. It is only to say that it did not do so here.

          For all its criticism of racial balancing, the Court did not even rule out the use of race as a factor in plans that aim to achieve racial balancing, but which, without treating individuals differently on the basis of their race, take race into account in the setting of policy generally, as in school clustering plans.

          The Court says explicitly that nothing in the opinion is to be interpreted as applying to such cases. It steered away from the issue completely. This apparently made Kennedy nervous, and he did not concur with Parts III-B and IV of the Court's opinion, apparently on the grounds that they permitted, though they did not invite, the conclusion that the Court would not allow the use of race to achieve pure racial balancing even in these kinds of cases.

          If the four conservative members of the Court do try to reach that interpretation of the Fourteenth [Amendment's Equal Protection Clause], it is clear that they will not have Kennedy with them; that Kennedy will once again be the swing vote; and that he will join with the four liberal members of the Court to defeat it.

Tom Wood, Moderator
Americans Against Discrimination and Preferences

Opinion by Paul Greenberg for the Washington Times

Washington Times Commentary Thurs., July 12, 2007 Page A15

          "Reports of the death of common sense in American law may have been premature.

          "As this term of the U.S. Supreme Court reached its final week, there were signs that the justices are breaking from the mindless muddle that characterized the [Sandra Day] O'Connor Court.

          "The turn to clarity since Justice O'Connor's departure was most evident in the court's 5-to-4 decision in a couple of school integration cases, one each out of Seattle and Louisville.  It seems some white students there had been turned way from schools they otherwise would have been entitled to attend -- because they were the "wrong" color. 

          "Once upon a long-ago time [1954], some of us thought Brown v. Board of Education would end racial discrimination in the public schools.  But half a century later, [racial discrimination] was still being practiced -- if against a different race.

          "In order to break up the old segregated order, it was thought necessary to take students' race into account when making school assignments -- as a temporary means to an end.

          "Once justice had been done and the schools were integrated -- or if they'd never been segregated by law in the first place -- assigning students to schools on the basis of their race wouldn't be necessary, or constitutional. At least that was the theory.

          "But the means became the end in school districts like those in Seattle and Louisville.  This is what comes of placing a collective social goal (racial balance) ahead of the rights of the individual.

          "This time the U.S. Supreme Court wasn't buying. To quote the majority opinion delivered by its still new chief justice, John Roberts: 'The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.' [Emphasis added.]

          "In a separate opinion, Justice Anthony M. Kennedy, always eager to elaborate the obvious, or at least complicate it, explained that the goal of racial balance might still be sought by various means -- drawing attendance zones, for example, or tracking students by race to see if all are served equally.  But he drew the line at discriminating against any individual student because of race.  Fair enough, and constitutional enough in hazy theory.  

          "The really striking opinion in this case was delivered by an associate justice, Clarence Thomas.  His concurrence may prove as memorable as John Marshall Harlan's great dissent in Plessy v. Ferguson, in which the ideal of a color-blind Constitution was first pronounced.

          "In response to the argument that racial discrimination is now permissible because it's for a good cause -- racial balance -- Justice Thomas pointed out that the Constitution does not waive the rights of the individual because an elite has decided its motives are pure.  He noted that advocates of racial preferences in the last century also considered their separate but equally exalted aim (social stability) worth the ignoble means.

          "Neither good intentions nor stirring shibboleths (Diversity. States' Rights) can in the end justify denying American citizens, even a small minority of them, the rights guaranteed by the Constitution of the United States. Changing the color of the race involved does not change the principle at stake.  To quote Justice Thomas: 'What was wrong in 1954 cannot be right today.' [Emphasis added.]"

-- Last known link to this
Washington Times Commentary
July 12, 2007
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Commentary by Abigail Thernstrom as published in the Wall Street Journal

Wall Street Journal Commentary July 2, 2007

          "More than half a century after Brown v. Board of Education, the Supreme Court is still wringing its hands over whether race can determine where a child goes to school. Can a school district look at two neighboring families, one black and the other white, and send the children to different schools because of their skin color?

          "In a 5-4 opinion last Thursday, the court took a gratifying but sadly limited step in the right direction.   Racial sorting, it said, is not permitted -- except when it is.

          "Chief Justice John Roberts, who was joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, wrote the plurality opinion in Parents v. Seattle.  Justice Anthony Kennedy agreed that Seattle and Jefferson County, Ky. (in the companion case of Meredith v. Jefferson County), had crossed a constitutional line by embracing racial balancing for its own sake.  But in important respects he disagreed with the Chief Justice, and his separate, gravely disappointing concurrence was the most important opinion.  His view -- providing the decisive fifth vote -- is now the settled law.

          "[In the Seattle Schools case, officials,] [w]orried about racially 'isolated' classrooms (which really meant classrooms with too few whites), the district adopted a high school assignment plan to promote more racial togetherness.  Incoming ninth graders could request a particular school, but if there were already too many whites or minorities in that school, too bad.  The children of two of the white plaintiffs were not assigned to the schools of their choice and ended up commuting -- four hours a day. The parents voted with their feet, opting for private schools.

          "Seattle's plan was extraordinarily crude, as the court noted, and that crudeness was central to sinking the whole scheme.  The school board had divided students into only two racial groups: white and nonwhite.  If schools were half-Asian, half-white, that was fine; if they were 30% white with the rest Asian, the numbers had to be adjusted.  ... 'Racial balance' in practice has meant 'enough whites.'

          "When the case reached the Ninth Circuit, Judge Carlos Bea noted (in his dissent) that the intellectual foundation for Seattle's policy was pure racial stereotyping.  The school authorities assumed 'that all white children express traditional white viewpoints and exhibit traditional white mannerisms; all nonwhite children express opposite nonwhite viewpoints and exhibit nonwhite mannerisms,' and therefore racially balanced classrooms are needed so that 'white and nonwhite children will better understand each other.'

          "Ending racial 'isolation' and promoting 'better understanding' were two sides of the same coin, in the imagination of the school district, which thought interracial contact inevitably brought 'understanding.'  

          "[In the muddled 2003 Supreme Court decision regarding the University of Michigan's racial admissions criteria, the high court's decision, determined by the ever-muddled Justice Sandra Day O'Connor, essentially said that 'forced diversity', i.e., 'racial balancing' in school admissions results in 'livelier' classroom discussions which are more enlightening, etc., ad nauseum.]

          "Livelier classroom debates, however, were not Seattle's primary aim.  It had an ambitious cultural agenda: fostering 'racial and cultural understanding' and creating a life-long desire to 'socialize with people of different races.'  Seattle believed that racial balancing plans were the students' first and (for some unexplained reason) last chance to learn citizenship in a 'multi-racial/multi-ethnic world.'

          "What about schools as places of academic learning?  Did moving kids around the city to get the racial numbers right have a positive impact on how much math kids learned?  Surely that is the bottom line that truly matters.  The Seattle school board simply ignored that question.

          "Chief Justice Roberts dismissed it as irrelevant to the case since the plan was constitutionally deficient on other grounds.  It was deficient mainly because the means chosen to achieve the stated ends were 'extreme.' There was not only the problem of the questionable white/nonwhite dichotomy, and the commitment to racial balancing for its own sake.   'Diversity' was a legitimate concern, in the view of the plurality, but it had to be defined more broadly.  Moreover, he [Justice Roberts] said, less overtly race-driven means could be found to create racially mixed schools.

          "If this is foggy, there are still moments of arresting clarity in the plurality decision, such as the final sentence [of Chief Justice Roberts' opinion]:  'The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.' [Emphasis added.]  Alas, it's hard to know how much weight to place on that sentence:   Much of the plurality opinion seemed to suggest that a more nuanced racial balancing plan, presenting slightly different circumstances, might be permissible.   All this is in sharp contrast to the principled, bracingly direct concurrence of Justice Thomas: 'Racial imbalance is not segregation,' he wrote, dismissing one of the more fashionable sophistries of our day, 'and the mere incantation of terms like resegregation and remediation cannot make up the difference.'   [Emphasis added.]

          "Where does this leave us?   What precise limits does the Constitution place on race-conscious policies?   Unwilling to simply follow Justice Harlan's famous dissent in Plessy v. Ferguson and declare that 'our Constitution is color-blind, and neither knows nor tolerates classes among citizens,' the Supreme Court has been trying to draw bright lines between the permissible and impermissible for many a decade -- and mainly producing a lot of what can only be described as barely decipherable gibberish."

Author Abigail Thernstrom is vice chair of the U.S. Commission on Civil Rights and a senior fellow at the Manhattan Institute, and is co-author with Stephan Thernstrom of "No Excuses: Closing the Racial Gap in Learning" (Simon & Schuster, 2003).

-- Last known link to this
Wall Street Journal commentary
July 2, 2007